New York Times, OpinionLab sue Lodsys in preemptive strikes

updated 08:45 am EDT, Tue June 14, 2011

by MacNN Staff

NYT and OpinionLab want Lodsys patents invalidated

Lodsys faced the consequences of its actions again Monday after the New York Times Company and OpinionLab both sued Lodsys (below) to invalidate its patents. Similar to the lawsuit from ForeSee, both of the plaintiffs are seeking a declaratory judgment that would at least absolve them of guilt and also nullify the patents themselves. OpinionLab's complaint alleged that Lodsys was violating Illinois fair competition laws and was committing tortious interference by scaring investors away.

The two companies noted that they or their customers had been given Lodsys' well-known patent infringement claim letters, arguing that the New York Times Company's ad click-through system and OpinionLabs' surveys were violating patents. OpinionLab said it took action in part because Lodsys wouldn't explain in greater detail what it had supposedly done wrong. Some of its customers, such as Adidas, had already been sued.

Either lawsuit called out Lodsys as a patent troll and noted that, without attempts to collect on patents, it received "no benefits" from the patents. Those leveled against OpinionLab were conveniently due to expire on August 6, 2012, leading the plaintiff to suspect that Lodsys was simply making a gamble on patents it was about to lose.

"Because Lodsys seeks to maximize its investment in the purchase of these patents and due to their imminent expiration, Lodsys has engaged in a calculated, widespread, and improper course of conduct in attempting to extract as much revenueas possible from purported 'infringers,' even though Lodsys could not possibly believe, in good faith, that the allegations of infringement were proper or justified," OpinionLab wrote.

If successful, the lawsuits would at least have Lodsys cover the court costs. OpinionLab would also have an injunction banning Lodsys from ever trying to collect on the patents or interfering in its business. The complaint would leave room for more damages if the court saw fit.

As of the new lawsuits, Lodsys now faced more lawsuits against it than those it was trying to perpetuate. Its attempt to claim ownership of in-app purchase technology has also seen Apple move to intervene in Lodsys' lawsuit against developers. Any one success would likely undermine Lodsys' core arguments and force it into a truce as it would lose much of its leverage in other cases. [via Florian Mueller]

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TOTAL_COMMENTS Comments

Patent trolls usually target those who lack the resources to defend themselves. Each collection then gives the troll more money to take on its next victim. In the case of LodSys, it looks like the opposite is happening. One by one, everyone affected, big and small, is taking LodSys to court, which raises the issue of how LodSys will afford to defend itself. The nasty troll under the bridge now has a mob dragging him out of the shadows and pounding him with clubs. One can't help but smile.

Perhaps this is the answer to our broken patent system. Congress seems as unwilling to act to fix our patent system as it is to fix our outdated, 1970s-era copyright laws. But if a few cease & desist letters to minor players trigger an avalanche of preemptive lawsuits from the major players, the patent trolling business might begin to look far less profitable and far more risky.

Of course, in the end the laws themselves need fixing and modernizing. The reforms we need are obvious.

First, patents should be more like trademark laws. Those who don't use them should lose them. If you don't invest and create an actual, marketable product, then those who do should not have to give their profits to you. That's the lurking of the troll system.

Second, we need to return to the old principle that business methods can't be patented. The only benefit the discoverer of a new business method (i.e. one-click or in-app purchasing) should get is being first to market with it. Business methods tend to be too simple, too obvious, and too beneficial to the public to tied up in patents. If one-click purchasing can be patented, then why not two-click, three-click etc?

Third, software patents should rarely, if ever, be awarded. Traditional mechanical patents were awarded for a specific way of doing something. A mechanical apparatus, for instance, to regulate the speed of a steam engine. The invention even had to be shown to work via a model. Even more critical, someone who could get the same result some other way wasn't infringing. A specific way of doing something was patented but not the result.

Software patents are not like that. You can do almost anything with software. A software patent may gibber on about technology, talking about storage systems and display devices, but that's just smoke and mirrors. They're really 'patenting' a black box. Because what's in the box isn't defined, no one else can get the same result in some other way.

That defeats the entire purpose of a patent system. Someone doesn't have to come up with a specific way to actually do something to get it patented. All they need do is talk about result. That means that someone else can't come up with a different way to do it. That defeats the basic purpose of our patent system because it discourages others from inventing something better.

Finally, thanks for including the court filings with this article. That helps.

It's about time companies fight back against troll's like Lodsys and others for patents that they never use as real products. Patents should be for companies that have real products which use them. Not for trolls to seek out other companies when there product resembles what may or may not be in there patents. It should be if you don't make a real product and sell it then any patent that you have should be invalid. Creating patents only to wait in hiding to pounce on companies that actually make real valid products and sue them in court because they actually can make money off of there real products should be ILLEGAL!!!

Many IT companies and Apple is included in them have patents "lurking" in the background only to be used in case someone else wants to use the software involved. I see patents all the time for Apple creations. Doesn't mean they are going to market, they are going to "file". Some companies buy patents to either use or protect themselves from patent infringement from others, like Microsoft's recent purchase of ???? can't remember the name, but they did just that and Apple just purchased a music streaming company for their "expertise". So if your are big enough do you get out of the "TROLL" moniker???? Just so many BUTTS around...;-))

Perhaps this is the answer to our broken patent system. Congress seems as unwilling to act to fix our patent system as it is to fix our outdated, 1970s-era copyright laws.

They already 'fixed' our copyright laws. Unfortunately what they have continually done is to extend copyright, making sure that companies never have to actually branch out, they can just keep shilling the same year after year. And that kids and grandkids can still keep reaping money for work they had no hand in earning. It's silly, for example, that Happy Birthday is still under copyright.

First, patents should be more like trademark laws. Those who don't use them should lose them. If you don't invest and create an actual, marketable product, then those who do should not have to give their profits to you. That's the lurking of the troll system.

Patents already have a built-in time frame. 17 years from patent until you lose it. How long should someone have to create it? Some great ideas take years from the patent for it to be even practical to manufacturer, let alone to perfect it. By that time, apparently, they would have lost their patent. So then why bother?

And define 'invest and create'. Is someone allowed to design a new product and license it to someone else to produce?

Software patents are not like that. You can do almost anything with software. A software patent may gibber on about technology, talking about storage systems and display devices, but that's just smoke and mirrors. They're really 'patenting' a black box. Because what's in the box isn't defined, no one else can get the same result in some other way.

Most software patents are NOT patenting a black box. They either patent an interface (which is visible) or they patent an algorithm, a way something is done. Unisys started demanding licensing for their compression algorithm used in GIF. But they couldn't sue any other compression algorithm, for they worked differently.

What you're complaining about is, again, more business processes (one-click, in-app purchasing, etc).

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